United States District Court, S.D. Florida, Miami Division
ANTHONY G. SCLAR, DMD, and SCLAR ORAL SURGERY, P.A., Plaintiffs,
OSTEOMED, L.P., Defendant.
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTION TO
FEDERIC A;.'M OXE O UN ITED STATES DISTRICT JUDGE
purported class action case arises out of the use of an
allegedly defective drill known as the OsteoPower System, a
rotary bone cutting drill manufactured by Defendant OsteoMed,
L.P. Plaintiffs Anthony G. Sclar, DMD, an oral surgeon of
nearly twenty-six years, and Sclar Oral Surgery, P.A. allege
that the drill emits dangerous levels of noise that result in
permanent hearing loss to the user. The Amended Complaint
states that Plaintiffs purchased the drill from Defendant,
but does not allege a date of purchase. Instead, Plaintiffs
allege that Dr. Sclar was diagnosed with hearing loss in
August 2016, which is when Plaintiffs first learned the
product was not as represented.
the Amended Complaint makes clear that this is not a personal
injury case and Plaintiffs do not seek damages for any
personal injuries suffered. Rather, Plaintiffs seek damages
for economic harm suffered as a result of purchasing the
allegedly defective drill. The purported class members
include all Florida individuals or entities that purchased
the drill from August 28, 2013 to the present. The Amended
Complaint includes three counts. Count I is for a violation
of the Florida Deceptive and Unfair Trade Practices Act,
§§501.201-501.213, Fla. Stat. Count II is a breach
of express warranty claim under Florida law. Count III is a
claim for common law assumpsit (unjust enrichment). This
Court has diversity jurisdiction pursuant to 28 U.S.C. §
1332, because there is complete diversity among the parties
and the amount in controversy exceeds $75, 000.
survive a motion to dismiss, plaintiffs must do more than
merely state legal conclusions/" instead plaintiffs must
"allege some specific factual basis for those
conclusions or face dismissal of their claims."
Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1263
(11th Cir. 2004). When ruling on a motion to dismiss, a court
must view the complaint in the light most favorable to the
plaintiff and accept the plaintiffs well-pleaded facts as
true. See St. Joseph's Hosp., Inc. v. Hosp. Corp. of
Am., 795 F.2d 948, 953 (11th Cir. 1986). This tenet,
however, does not apply to legal conclusions. See
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Moreover, "[w]hile legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations." Id. at 1950. Those
"[f]actual allegations must be enough to raise a right
to relief above the speculative level on the assumption that
all of the complaint's allegations are true."
Bell All. Corp. v. Twombly, 550 U.S. 544, 545
(2007). In short, the complaint must not merely allege
misconduct, but must demonstrate that the pleader is entitled
to relief. See Iqbal, 129 S.Ct. at 1950.
move to dismiss with three principal arguments. First, the
breach of express warranty claim (Count II) fails because
Plaintiffs failed to comply with the pre-suit notice
requirement under Florida law. Second, the Florida Deceptive
and Unfair Trade Practices Act claim (Count I) is barred: (a)
by the four-year statute of limitation; (b) because
Plaintiffs fail to identify a deceptive or unfair practice
that could not have reasonably been avoided; and (c) because
it does not meet Federal Rule of Civil Procedure 9(b)'s
heightened pleading standard. Third, the claim for common law
assumpsit fails because it seeks recovery for the same
conduct as the breach of express warranty claim.
Breach of Express Warranty (Count II)
argues that Plaintiffs' breach of express warranty claim
is barred by Plaintiffs' failure to provide pre-suit
notice as required by Florida law. Under Florida law, in
order to recover for a claim of breach of express warranty,
"[t]he buyer must within a reasonable time after he or
she discovers or should have discovered any breach notify the
seller of breach or be barred from any remedy." Fla.
Stat. § 672.607(3)(a); see also Jovine v. Abbott
Labs., Inc., 795 F.Supp.2d 1331, 1340 (S.D. Fla. 2011)
(granting motion to dismiss breach of express warranty claim
where plaintiff did not "allege that he ever notified
Defendants of the alleged breach of a warranty").
Plaintiffs counter that pre-suit notice was unnecessary
because the notice requirement does not extend to Dr. Sclar
as a "warranty beneficiary" under Florida Statute
672.318. Florida Statute 672.318 provides:
A seller's warranty whether express or implied extends to
any natural person who is in the family or household of his
or her buyer, who is a guest in his or her home or who is an
employee, servant or agent of his or her buyer if it is
reasonable to expect that such person may use, consume or be
affected by the goods and who is injured in person by breach
of the warranty. A seller may not exclude nor limit the
operation of this section.
See also Carlson v. Armstrong World Indus., Inc.,
693 F.Supp. 1073, 1078 (S.D. Fla. 1987) ("The notice
requirement does not, under Florida law, extend to persons
such as plaintiff who are not "buyers" of the
product in question, but are rather warranty beneficiaries
under Florida Statute § 672.318.") (Hoeveler, J.).
raise this "warranty beneficiary" theory, for the
first time, in their Response in opposition to
Defendant's Motion to Dismiss. See D.E. 26 at 3
("Here, the drill was purchased for Plaintiff Anthony G.
Sclar's dental practice, not for his individual use. If
he is a warranty beneficiary, the alleged failure to give
notice does not support a motion to dismiss, at least as to
his claims."). Notably, the terms "beneficiary,
" "warranty beneficiary, " "warranty
beneficiaries, " or "672.318" do not appear in
the Amended Complaint. Courts "cannot rely on factual
allegations in a response to a motion to dismiss when
considering the sufficiency of the complaint itself."
Jepsen v. Lornamead, Inc., No. 8:12-CV-1811-T-30TGW,
2012 WL 5989244, at *3 n.2 (M.D. Fla. Nov. 29, 2012); see
also Huls v. Llabona, 437 Fed.Appx. 830, 832 n.5
(11th Cir. 2011) (finding the plaintiffs argument, which was
raised for the first time in his response to the
defendant's motion to dismiss, improper because the
plaintiff did not seek leave to file an amended complaint).
this tardy attempt, the newfound allegation that Dr. Sclar is
a warranty beneficiary, wholly contradicts the allegations in
the Amended Complaint, where Plaintiffs allege nearly a dozen
times that Plaintiffs "purchased" the drill.
E.g., D.E. 20 at ¶ 13 ("Plaintiffs
purchased the OsteoPower System from Defendant.").
Accordingly, the Court finds that Plaintiffs' ninth
inning attempt to recast Dr. Sclar as a warranty beneficiary
is untimely. Thus, because the Amended Complaint does not
allege that Plaintiffs complied with Florida's pre-suit